Do Court Recordings Have "Privacy Rights"? Making It Even Harder to File Complaints Against Incompetent Judges in the Future

The year 2013, which has just faded into history amidst brilliant fireworks, is a year closely intertwined with "privacy."

Globally, we witnessed news such as Edward Snowden, a former contractor for the U.S. National Security Agency, risking his personal safety to expose the U.S. intelligence agency's long-term surveillance of citizens' and allies' phone calls and emails, straining diplomatic relations. Domestically, Taiwan's society was shaken by the wiretapping scandal involving the Special Investigation Division during the "September Political Struggle."

Why is "privacy" so important? As the saying goes, "Know the enemy and know yourself, and you can fight a hundred battles with no danger of defeat." States spare no effort to pry into the privacy of political figures in other countries and acquire secrets to serve as the layout for their own national defense and diplomacy. Meanwhile, in the business world, gathering user data and personal consumption habits to accurately target markets and launch products has long ceased to be news.

Beyond political maneuvering or commercial competition, "privacy" can also be cleverly employed as a tactic to whitewash peace and gloss over problems. The "Regulations Governing Court Recordings and Their Utilization and Preservation" promulgated by the Judicial Yuan on October 25, 2013, is a prime example.

The Judicial Yuan's "Regulations Governing Court Recordings and Their Utilization and Preservation"

The newly passed "Regulations Governing Court Recordings and Their Utilization and Preservation" repealed the recording regulations previously enacted by the Judicial Yuan. Article 8 thereof strictly stipulates that requesting a CD-ROM of court recordings requires the written consent of "all" persons making statements at the hearing, as well as the payment of a fee. Furthermore, "Persons holding the recording CD-ROM mentioned in the preceding paragraph shall not use it for improper purposes."

The Judicial Yuan's reason for establishing these regulations, which are even stricter than before, is to protect the "personal privacy" of those making statements in court. However, litigation attorneys, who have always been closer to the courts than the general public, directly pointed out that the Judicial Yuan's motive is likely because "...a majority of judicial adjudicators still engage in improper litigation management behaviors during trials that are sufficient to provoke public censure..."; "...and therefore this amendment was made to reduce the opportunities for their own poor litigation management conditions to be leaked outside."

"Even if a party wishes to initiate a judge evaluation based on this, without being able to apply for a court recording CD-ROM as corroborating evidence, the lack of evidence will greatly reduce the party's willingness to file for a judge evaluation. Consequently, the future filing of complaints against judges and applications for judge evaluations will become even more difficult because the party (i.e., the complainant) cannot obtain the recording CD-ROM, leading to a decrease in numbers, disappearance, and ultimately even leaving judicial adjudicators unbound by any external oversight mechanisms." (Who's Afraid of the Recording CD-ROM?)

Discerning individuals thus initiated a lawyer petition on the last day of 2013 to "Protest the Judicial Yuan's Arbitrary Amendment of Court Recording Regulations," hoping that the Judicial Yuan would abolish the "Regulations Governing Court Recordings and Their Utilization and Preservation" and propose reasonable regulations for court recordings and their utilization (Lawyer Petition Statement).

Are Statements in Court "Personal Privacy"?

During court hearings, in addition to the court clerk recording the written minutes (by typing), court hearings are recorded to prevent parties or interested persons in a case (including judges, prosecutors, attorneys, witnesses, expert witnesses, etc.) from having their oral statements in court incorrectly recorded or omitted by the clerk, which would affect the judge's or prosecutor's factual and legal judgments.

Recording itself not only allows parties to apply for review to verify and ensure the accuracy of the minutes when there are doubts, but the contents of the recording can also serve as evidence. Therefore, court recordings are not merely an important link in safeguarding people's right to litigation in pursuit of "accurate trials" and "public trials"; they are also a quite significant part of the rules of evidence in litigation, and can even be said to touch upon the core guarantee of the right to litigation—due process.

Statements made in court, aside from a small portion concerning personal data inquiries (i.e., identity verification), are not objects of privacy protected by the Personal Data Protection Act. Moreover, the "public court" demanded by a modern state under the rule of law stems from the concern that trials conducted behind closed doors would subject parties to various tangible and intangible influences, thereby compromising the impartiality of judgments. Therefore, except for a few circumstances prescribed by law (criminal investigative hearings, sexual assault cases, family law cases, or juvenile delinquency cases, etc.), trials are public.

In other words, the contents of the court recording CD-ROM of the scene recorded at the time include not only the statements made in court by the parties and interested persons of the case, but also the non-speaking persons present (including court clerks, interpreters, bailiffs who do not need to make statements in court, parties to other cases waiting in the back, or even observing students, passersby A, B, C, etc.), all of whom could already see and hear everything at the hearing scene. How then can statements in court be construed as personal privacy?

Court Recording CD-ROMs and Your Right to Litigation

The people of Taiwan would rather avoid the law whenever possible and steer clear of the word "court" to avoid bad luck, with the result that the "right to litigation" remains the most alienated fundamental right for many citizens. However, turning a blind eye does not guarantee that one will never have anything to do with the law in this lifetime—what is discussed here concerns precisely you.

The Judicial Yuan has infinitely escalated the protection of personal data, using the high standing of a state organ to arbitrarily interpret the original intent of personal data protection, thereby eroding the substance of the right to litigation. Furthermore, "Persons holding the recording CD-ROM mentioned in the preceding paragraph shall not use it for improper purposes"—who holds the ultimate power to decide what constitutes a "proper purpose"? This intention, obvious to everyone on the street, became the grand gift presented to the people of Taiwan at the end of 2013 by the institution tasked with the people's judicial power, alongside the "300-million judge Hu Ching-pin" (胡景彬).